46 Nebraskaland • January-February 2026
explained the history of habeas corpus in English law. The
attorney had demonstrated that habeas corpus had always
applied only to the "free subjects of the kingdom" and not
to everyone.
Dundy dismissed this argument. "I have not examined the
English laws ... ," he said, "nor have I thought it necessary
to do so." Even if the federal attorney was correct, English
laws "will appear at a disadvantage when compared with
our own … that whilst the Parliament of Great Britain was
legislating in behalf of the favored few, the Congress of the
United States was legislating in behalf of all mankind who
come within our jurisdiction."
Dundy did not address the question of citizenship or
restore the Poncas' land, but he ordered General Crook
to release the Poncas. Standing Bear and his followers
had chosen to separate themselves from the rest of their
tribe, and that decision must be respected, Dundy said,
because — and here he referenced the Declaration — they
"have the inalienable right to 'life, liberty, and the pursuit
of happiness …'."
Dundy did not argue that the Founders had Native
Americans in mind when they wrote those words. In truth,
colonists had wanted to move deeper into the Native
American's territory beyond the Appalachians, and resented
the British government for trying to stop them.
But once Americans embraced the principles of equality,
self-government and inalienable rights, people who were
not protected by existing laws began to argue that so-called
universal principles ought to include everyone. Over time,
this proved to be a powerful argument.
Judge Elmer Dundy. NSHS RG2411-PH0-142
